Eid and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 4155

Eid and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4155 (11 November 2021)

Division:GENERAL DIVISION

File Number(s):      2021/6094

Re:Mohamad Eid

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:11 November 2021

Place:Sydney

The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 24 August 2021 not to revoke the mandatory cancellation of the Applicant’s Class BF Transitional (Permanent) visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s Class BF Transitional (Permanent) visa is revoked.

.....................................[sgd]...................................

Senior Member M Griffin QC

CATCHWORDS

MIGRATION – mandatory cancellation of visa – Class BF Transitional (Permanent) visa – where visa was cancelled under s 501(3A) because applicant did not pass character test – substantial criminal record - Ministerial Direction No. 90 – primary considerations – protection of the Australian community – seriousness of offending and future risk – family violence – best interests of minor children in Australia – expectations of the Australian community – other considerations – international non-refoulment obligations – extent of impediments if removed – strength, nature and duration of ties to Australia – non­refoulement consideration strongly outweighs Applicant’s past criminal conduct and risk of future offending – decision set aside and substituted

LEGISLATION

Migration Act 1958 (Cth) ss 499, 500, 501, 501CA, 501E

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166

SECONDARY MATERIALS

Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member M Griffin QC

11 November 2021

1. The Applicant seeks review of a decision of a delegate of the Minister dated 24 August 2021 which was to refuse to revoke the mandatory cancellation of the Applicant’s Class BF Transitional (Permanent) visa (the visa) under subsection 501(1) of the Migration Act 1958 (Cth) (the Act).

FACTS

2.       The Applicant was born in June 1967 and is a citizen of Lebanon. The Applicant grew up in a large family but claims that he was exposed to the war in that country and he became politically active and known for his outspoken views against the Syrian regime whereupon threats were received against him, including harm to him from Syrian forces.

3.       The Applicant married at 23 years of age and has two adult children who reside in Australia. The Applicant came to Australia aged 27 in 1994 with his then wife.

4.       The relationship with his wife broke down and subsequently and relevantly, the Applicant was in a relationship in 2020 with a female person at the time of the commission of offences, which are relevant to this hearing.

5.       The Applicant has a lengthy criminal history although it is necessary to analyse that history in some detail for the purposes of this hearing.

6.       The Applicant first offended and was sentenced in the Local Court of NSW in September 2001 for possession of prohibited drug and goods suspected of being stolen. Much of the offending history since that time, until his last offending in 2020, comprises offences of that character and also includes a number of offences for possession of prohibited weapons.

7.       Set out below is the summary of the more serious offences. They appear in table form and have been provided by the Respondent and are not the subject of disagreement by the Applicant.

Offence	Sentencing date	Sentence
Common assault (DV)-T2	24/12/2020 Confirmed: 8/02/2021	Community correction order: 2 years commencing 24/12/2020 concluding 23/12/2022
Possess or use a prohibited weapon without permit-T2 (flick knife)	24/12/2020 Confirmed: 8/02/2021	(Aggregate) Imprisonment: 14 months commencing 29/06/2020 concluding 23/12/2022 Non-parole period: 7 months commencing 29/06/2020 concluding 28/01/2021
Use prohibited weapon contrary to prohibition order-T2 (fold out knife)	24/12/2020 Confirmed: 8/02/2021
Custody of knife in public place – first offence	27/04/2020 Called up: 24/12/2020 Confirmed: 8/02/2021
Goods in personal custody suspected being stolen (not m/v)	27/04/2020 Called up: 24/12/2020 Confirmed: 8/02/2021
Possess or use a prohibited weapon without permit-T2	24/05/2019 Called up: 20/11/2019 and 27/04/2020 and 24/12/2020 Confirmed: 8/02/2021
Possession of equipment for administering prohibited drugs	24/05/2019 Called up: 20/11/2019 and 27/04/2020 and 24/12/2020 Confirmed: 8/02/2021
Fire firearm in or near public place-T2	23/01/2009	Imprisonment: 3 years 6 months commencing 21/06/2007 concluding 20/12/2010
Robbery in company-SI	23/01/2009	Imprisonment: 5 years, commencing 21/06/2010 concluding 20/06/2015 Non-parole period: 2 years commencing 21/06/2010 concluding 20/06/2012
Sp agg B&E & commit serious indictable offence-weapon-SI	23/01/2009
Agg assault w/i to take/drive m/v-armed with weapon-T1	23/01/2009
Possess prohibited drug	16/01/2009	Imprisonment: 1 month commencing 16/01/2009
Possess/use a prohibited weapon w/o permit-T2	26/10/2006 Called up: 01/04/2008	Imprisonment: 9 months Non-parole period: 6 months suspended on enter bond s 12

8.       The offending in 2020 comprised a domestic violence-related common assault where it was alleged the Applicant pushed the shoulder of his partner causing her to stumble. This behaviour has relevance to the consideration which relates to domestic violence as well as the general consideration to the seriousness of offending and risk of future offending.

9.       Furthermore, the Applicant was sentenced to weapons offences for the possession of a flick knife and a folding knife and was subject to a prohibition order in relation to weapons which demonstrated a deliberate failure by the Applicant to abide by earlier imposed Court Orders.

10.     The Tribunal observes that this offending is very much at the lower end of the scale of seriousness and does not demonstrate increasingly serious criminal conduct on the part of the Applicant.

11.     By far the most serious offences were committed by the Applicant in April and May of 2007 where on two occasions, the Applicant threatened the same victim and demanded money, drugs and the supply of those drugs to the Applicant. These offences are particularly serious and also included the firing of a shotgun into the home of someone with whom the Applicant had had a disagreement and a relatively short time afterwards, firing a shotgun outside the home of his former partner because of her having formed a new relationship, an active demonstration of jealousy by the Applicant.

12.     It is unsurprising that the Sentencing Judge sentenced the Applicant to an overall sentence of five years imprisonment.

13.     It is to be noted that the Sentencing Magistrate in 2020 referred to a lengthy criminal history in which the Judicial Officer said the Applicant has spent a large part of his time in custody. A proper analysis of that history does not demonstrate that opinion expressed by the Judicial Officer. Although the history discloses opportunities given to the Applicant for rehabilitation, some sentences were to be served in the community and opportunities were given for reform, all of which seem to have been ignored, or at least had little impact on the Applicant, in terms of reform and rehabilitation.

ISSUES

14.     The Applicant does not pass the character test because he has a substantial criminal record by virtue of having been sentenced to a term of imprisonment of 12 months or more: ss 501(6)(a) and (7)(c) of the Act. This is not disputed by the Applicant.

15.     The sole issue for the Tribunal's determination is whether it can be satisfied that there is another reason why the original decision should be revoked, such that the Tribunal may revoke the decision: s 501CA(4)(b)(ii) of the Act.

RELEVANT LEGISLATION AND POLICY

16.     Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).

17.     Section 501CA(4) provides that:

(4)The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(b) the Minister is satisfied:

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

18.     In Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38], North ACJ held that:

The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.

19.     Section 501(6)(a) relevantly provides that a person does not pass the character test if the Applicant has a substantial criminal history. Section 501(7)(c) states that a person has a substantial criminal history if they have received a sentence of imprisonment of 12 months or more.

20.     The Applicant was sentenced to a term of imprisonment for more than 12 months. The Applicant does not pass the character test.

21.     Section 500(1)(ba) of the Act provides that applications may be made to the Tribunal or review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.

22.     The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction No. 90). Section 5 of Direction No. 90 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly includes that:

(a)Australia has a sovereign right to determine whether non-citizens who are of character concern have a right to enter or remain in Australia. Being able to come or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework and will not cause or threaten harm to individuals or the Australian community (paragraph 5.2(1));

(b)non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia (paragraph 5.2(2));

(c)the Australian community expects that the Australian Government can and should refuse entry to non-citizens or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community (paragraph  5.2(3));

(d)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age (paragraph 5.2(4));

(e)decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non- citizen's conduct or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community (paragraph 5.2(5)).

23.     Part 2 of Direction No. 90 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises four Primary Considerations and several specified, but non-exhaustive, Other Considerations, which must be taken into account.

24.     Pursuant to Part 2 of Direction No. 90, the Tribunal must, to the extent that they are relevant to this case, take the relevant considerations (both primary and other) into account and:

(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight (paragraph 7.1).

(2)Primary considerations should generally be given greater weight than the other considerations (paragraph 7.2).

(3)One or more primary considerations may outweigh other primary considerations (paragraph 7.3).

25.     These principles are of course dependent upon the facts and circumstances of each case.

26.     The primary considerations are:

(1)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);

(2)Whether the conduct engaged in constituted family violence (Primary Consideration 2);

(3)The best interests of minor children in Australia (Primary Consideration 3); and

(4)Expectations of the Australian community (Primary Consideration 4).

27.     The Tribunal must also take into account other considerations insofar as they are relevant.

28.     These considerations include (but are not limited to):

a)International non-refoulement obligations;

b)Extent of impediments if removed;

c)Impact on victims;

d)Links to the Australian community, including:
i)  strength, nature and duration of ties to Australia;
ii) impact on Australian business interests.

THE CHARACTER TEST

29.     As set out above, s 501(6)(a) of the Act provides that a person does not pass the character test if the person has a ‘substantial criminal record’ as defined in s 501(7) of the Act.

30.     For the purposes of the character test, a person has a substantial criminal record under s 501(7)(c) of the Act if the person has been sentenced to a term of imprisonment of 12 months or more.

31.     In circumstances where the Applicant has been sentenced to imprisonment of 12 months or more, the Applicant satisfies the definition in s 501(7)(c) of the Act and therefore fails the character test.

EXERCISING THE DISCRETION

32.     In exercising the discretion in s 501CA(4) of the Act, the Tribunal must comply with Direction No. 90 (see s 499(2A) of the Act) which sets out the relevant considerations.

Primary Consideration 1 – Protection of the Australian community

33.     Paragraph 8.1 of Direction No. 90 provides:

(1)    When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

34.     Paragraph 8.1(2) of Direction No. 90 provides that decision-makers should also give consideration to:

a)the nature and seriousness of the non-citizen's conduct to date; and

b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

The nature and seriousness of the Applicant's conduct to date

35.     Sub-paragraph 8.1.1 of Direction No. 90 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes:

a)without limiting the range of offences that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community (sub-paragraph 8.1.1(1)(a)(i)- (iii)):

(i)violent and/or sexual crimes;

(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;

(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious (sub-paragraph 8.1.1(1)(b)(i)-(iv)):

(i)causing a party to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision- maker's opinion (for example, section 501(6)(c);

(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;

c)with the exception of the crimes or conduct mentioned in subparagraph a)(ii), a)(iii) or b)(i) above, the sentence imposed by the courts for a crime or crimes;

d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;

e)the cumulative effect of repeated offending;

f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).

The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

36.     Paragraph 8.1.2 of Direction No. 90 provides that decision-makers must have regard to the following:

(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i)    information and evidence on the risk of the non­ citizen re-offending; and

ii)   evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

Seriousness of offending and future risk

37.     Paragraph 8.1.2(2)(b) of Direction No. 90 requires the Tribunal to have regard to the likelihood of the person engaging in further criminal conduct, including evidence of re-offending and rehabilitation.

38.     It is necessary to look carefully and analyse closely the Applicant’s offending history. That history demonstrates that it has not increased in seriousness. In fact, rather the opposite is true. There is one relatively minor offence of domestic violence although the offence of firing the shotgun in the vicinity of his ex-girlfriend’s house in 2007 has the flavour of being domestically-related violence. The offending in 2007 is by far the most serious as it involves personal violence and the threat of violence made to others as well as the potential for serious injury being occasioned to other innocent persons.

39.     It is, however, of significance that offending of that kind has not occurred since 2007 and although there are the curious and concerning offences for possession of weapons, there is no suggestion in the material that the Applicant intended to use those weapons against other persons. The Applicant’s offending history, apart from the offences in 2007, is that of the recalcitrant drug addict. His behaviour is affected by an addiction to drugs and/or alcohol. It is the criminal behaviour of someone who equally seems unable to be assisted by Court-ordered interventions meant to produce a rehabilitative effect.

40.     The Applicant says that there have recently been attempts by him in detention to pursue a change of behaviour with rehabilitative consequences. The Applicant also argues that there are protective factors of his family who will assist him. The Tribunal notes that this type of assistance was referred to in the past by the Sentencing Judge in 2007 and it clearly was of no benefit. The Tribunal can see no reason why there should be any difference in the likelihood now of family intervention and protection against offending in this Applicant’s case.

41.     The Tribunal recognises, however, that the imminent removal of the Applicant from Australia and the potential for that process in the future should the Applicant remain in Australia may, however, act as a protective factor in curtailing the Applicant’s criminal conduct and in this regard, that is a positive feature in the Applicant’s case, particularly in circumstances where removal to Lebanon may well bring about serious personal danger for the Applicant. This last aspect will be discussed further below.

42.     Overall, the Tribunal is of the view that apart from the offences in 2007, which have not in any dimension been repeated and recognising that those offences are now approximately 14 years in the past, the Applicant’s overall criminal offending, whilst it must be regarded as serious according to Direction No. 90, should also sensibly be viewed in the context discussed above. Overall, the Tribunal forms a view that the Applicant’s offending is moderate.

43.     As to the risk of future offending, the Tribunal takes into account the Applicant’s attempts at rehabilitation, particularly in the recent past, and gives some limited weight to those attempts as being genuine. It is, however, of course another matter as to whether despite the genuineness of the attempts, whether they will practically be of any effect and in that regard, taking into account the Applicant’s past conduct, is suggestive of the fact that the Applicant has and will experience difficulties in changing his behaviour.

44.     The Tribunal is ultimately of the view that there is a likelihood that the Applicant will continue to offend but in the limited sense of drug-related offences. Overall, in the Tribunal’s view, that offending is unlikely to involve any real threats or danger to other members of society. The offending likely to be perpetrated by the Applicant is offending related to personal abuse of drugs.

45.     It is tolerably clear, having referred to these matters, that the Tribunal is of the view that the Applicant is unlikely to, despite protestations, discontinue his abuse of drugs and/or alcohol. This consideration, therefore, weighs against the Applicant but it does not carry the weight contended for by the Respondent.

Primary Consideration 2 – Family violence committed by the non-citizen

46.     Paragraph 8.2(1) of Direction No. 90 provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.

47.     Paragraph 4(1) defines family violence to mean ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful’.

48.     Primary Consideration 2 is relevant in circumstances where (paragraph 8.2(2)):

a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.2(2)(a)); and/or

b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-paragraph 8.2(2)(b)).

49.     Paragraph 8.2(3) of Direction No. 90 provides that, in considering the seriousness of family violence engaged in by the non-citizen, the following factors must be considered, where relevant:

a)the frequency of the non-citizen's conduct and/or whether there is any trend in increasing seriousness (sub-paragraph 8.2(3)(a));

b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.2(3)(b));

c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.2(3)(c)):

(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.2(3)(c)(i));

(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.2(3)(c)(ii));

(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.2(3)(c)(iii)); and

d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.2(3)(d)).

50.     This consideration must be regarded and considered separately by the Tribunal. There is, in this case, one isolated incident of a relatively minor domestic violence assault which the Tribunal concludes is within the relevant consideration in terms of definition and conduct by the Applicant.

51.     The conduct involves a pushing of the Applicant’s victim, his partner at the time, which pushing caused her to stumble and fall. It was said that this conduct was carried out against the background of the Applicant being particularly controlling of the victim over a relevantly lengthy period of time.

52.     This conduct, overall, particularly because it was an isolated event, although regarded pursuant to Direction No. 90 as serious, should be seen in its proper context. It is very much at the lower end of the scale of seriousness and although this conduct must count against the Applicant in this consideration, it carries overall, in the Tribunal’s view, limited weight.

Primary Consideration 3 – Best interests of minor children in Australia

53.     Paragraph 8.3(1) of Direction No. 90 provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision.

54.     This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made (sub-paragraph 8.3(2)).

55.     Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.

56.     Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:

a)the nature and duration of the relationship between the child and Applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence or limited meaningful contact (including whether an existing Court order restricts contact) (sub-paragraph 8.3(4)(a));

b)the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements (sub- paragraph 8.3(4)(b));

c)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));

d)the likely effect that any separation from the Applicant would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways  (sub-paragraph 8.3(4)(d));

e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));

f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));

g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and

h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (sub-paragraph 8.3(4)(h)).

57.     The Applicant has two grandchildren, a boy and girl, whose ages are two-and-a-half and one-and-a-half years respectively, who are the children of his adult children. They are all Australian citizens.

58.     It is said by the Applicant that he has a meaningful relationship with those children, having enjoyed in the past a ‘very close relationship with the grandchildren whom he used to see every day when he was in the community’.

59.     There is no reason to suppose that the grandchildren would not be affected should the Applicant be required to leave Australia and furthermore, that they would be deprived of having meaningful contact with their grandfather should he be returned to Lebanon. This is a submission of the Applicant and the Tribunal finds no reason not to accept that fundamental submission and proposition relied upon.

60.     It is clear on the evidence that the Applicant is not the primary caregiver nor in the position of a parent, although the Tribunal recognises the role of a grandparent is particularly important to young children. Furthermore, the Tribunal is prepared to infer, in a cultural sense, that the grandparental role is particularly important for the minor children who are to be considered.

61.     There is nothing special or peculiar in the relationship that the Applicant asserts in relation to those minor children over and above the normal child-grandparental relationship.

62.     This relationship should not be ignored and the quality of its importance to minor children, the Tribunal considers, should be accepted to the extent of the relationship described and the quality of that relationship. The Tribunal finds that this consideration weighs modestly in the Applicant’s favour.

Primary Consideration 4 – Expectations of the Australian community

63.     Paragraph 8.4(1) of Direction No. 90 provides as follows:

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.

64.     Paragraph 8.4(2) also provides that it may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

(a)   acts of family violence; or

(b)   causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

(c)    commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;

(d)   commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

(e)   involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

(f)    worker exploitation.

65.     The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).

66.     This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).

67.     This consideration has been the subject of extensive judicial discussion and ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185). Although these principles are discussed in relation to the former Direction No. 79, those principles are not relevantly different in principle with respect to Direction No. 90.

68.     It is not for the Tribunal to substitute its own view for the expectations of the Australian community by reference to the Applicant’s circumstances. The Tribunal rather, must give effect to the ‘norm’ stipulated in Direction No. 90 at 13.3(1). per Stewart J and Charlesworth J (93); (100 to 104); (68).

69.     The history of the Applicant’s offending over a lengthy period of time and the quality of that offending, particularly the offences committed in 2007, are relevant to the assessment of this matter. There is nothing in the objective or subjective features of the Applicant’s past conduct which would diminish the fact that this consideration should weigh against the Applicant.

OTHER CONSIDERATIONS

70.     A decision-maker must also take into account Other Considerations where relevant. These considerations include (but are not limited to) (paragraph 9(1) Direction No. 90):

a)international non-refoulement obligations;

b)extent of impediments if removed;

c)impact on victims;

d)links to the Australian community, including:

(i)strength, nature and duration of ties to Australia;

(ii)impact on Australian business interests.

International non-refoulement obligations

71.     The considerations at paragraph 9.1 of Direction No. 90 include (but are not limited to):

(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations.

(2)In making a decision under s 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct.

(3)However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa.

(4)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa in a request to revoke the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).

(5)International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.

(6)It may not be possible at the section 501/section 501CA stage to consider non­refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non­refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.

(7)Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non­citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.

(8)If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international non­refoulement obligations.

72.     Analysis and consideration of this topic requires at first instance an acceptance of the claims which are made by the Applicant. These claims, in summary, are that prior to leaving Lebanon 27 years ago, the Applicant was involved in a political movement which protested against the civil war in Lebanon and the involvement of Syrian forces, including the organisation Hezbollah, in the affairs of Lebanon.

73.     The Tribunal notes real concerns about the truthfulness of some of the evidence which the Applicant gave during the course of the hearing. In particular, the Tribunal had concerns about the veracity and fundamental truthfulness of statements made by the Applicant concerning his involvement in the commission of offences, including the Applicant’s rejection of his guilt in relation to some of his offending in 2007 and the possession of weapons offences which were the subject of charges in 2020. In fact, the Tribunal rejects entirely the Applicant’s explanation in relation to these matters and overall, considers that there are a number of aspects of the Applicant’s evidence which simply cannot be accepted as truthful.

74.     However, after a careful examination of that part of the Applicant’s evidence which related to his claims of the likelihood of harm should he return to Lebanon, the Tribunal is ultimately satisfied that there is no reason not to accept the Applicant’s claims. Furthermore, in relation to the claims of fear of harm from Syrian and/or Hezbollah forces, seemed to the Tribunal to be genuine, accompanied as they were, by some genuine passion and what also appeared to be an understanding of the present political situation in Lebanon and the likely harm to those who returned to Lebanon with the background of political agitation, including the Applicant himself.

75.     In fact, not only does the Tribunal accept that the Applicant has a subjective and genuinely-held concern for his own safety should he be returned to Lebanon but furthermore, that concern has objectively, a satisfactory evidentiary foundation. That objective concern, expressed by the Applicant, is accepted as being an appropriate concern and foundation for engaging this consideration by the Respondent. The Tribunal is satisfied that although large parts of the Applicant’s evidence maybe properly be disregarded for lack of credibility, in the case of the Applicant’s assertions concerning fear of harm by Hezbollah and Syrian forces, those concerns have a proper foundation having regard to what the Tribunal accepts as the political situation in Lebanon.

76.     This is so even though the Applicant’s involvement in political matters was over 27 years ago. The Tribunal is prepared to accept the Applicant’s assertion that the memories of those against whom the Applicant and his fellows were opposed have endured and that should the Applicant be returned to Lebanon, he is likely to face questioning, serious physical harm, and even death.

77.     In the Tribunal’s opinion, the examination and analysis of evidence on this topic, taken together, is sufficiently convincing to both engage and make particularly weighty, a decision in the Applicant’s favour.

78.     The Tribunal is prepared to accept the Applicant’s assertions as to harm even though on two occasions, for the purposes of providing information for a Court report and for the proceedings before the Sentencing Judge in 2009, the Applicant said that he was prepared to return to Lebanon. This intention, expressed some years ago is no longer, in the Tribunal’s view, the strongly held position the Applicant now assumes in stating his fear of returning to Lebanon.

79.     The Tribunal recognises that the Applicant has the right to make an application in the circumstances for a protection visa and considers that the application will be properly dealt with according to governmental policy and law. Furthermore, the Applicant may seek the exercise of the Minister’s discretion despite other contrary considerations while it is possible that that discretion may be exercised in the Applicant’s favour. The Tribunal makes no finding whatsoever about the likelihood of such an exercise of discretion, merely that it is a possible exercise of discretion in the Applicant’s case.

80.     Although the Tribunal recognises the power to exercise discretion in the Applicant’s favour and the legislative mechanism by which the Applicant may make a claim for a protection visa at first instance, the Tribunal does not regard the existence of those matters referred to as outweighing the powerful factors in the Applicant’s favour which weigh strongly in favour in this case of revoking the mandatory cancellation, particularly because of the likely harm to the Applicant, should he be returned to Lebanon.

81.     A practical consequence of this migration legislation, should the Applicant’s mandatory cancellation not be revoked, depending upon the course which both the Applicant and the Minister and delegates take, is a potential for the Applicant to be detained indefinitely.

82.     The Tribunal recognises that such detention may be a consequence of the actions taken by the Minister. The Tribunal is also cognisant of the fact that there is no evidence indicating any basis for considering this issue in a practical sense based upon the facts of the Applicant’s case and the Applicant’s circumstances. In that regard, therefore, on that basis, the Tribunal gives no weight to this factor in its analysis of this consideration.

83.     In particular, in giving weight to this consideration, and in balancing the seriousness of the Applicant’s past conduct and the risk of offending against the real likelihood of serious harm or death being occasioned to the Applicant should he be returned to Lebanon, the Tribunal concludes that the non­refoulement consideration strongly outweighs the Applicant’s past criminal conduct and risk of future offending.

84.     This conclusion, therefore, overall weighs very strongly in the Applicant’s favour.

Extent of impediments if removed

85.     Paragraph 9.2(1) of Direction No. 90 provides:

(1)Decision-makers must consider the extent of any impediments that the non­citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a)     the non-citizen's age and health;

b)     whether there are substantial language or cultural barriers; and

c)     any social, medical and/or economic support available to them in that country.

86.     In the Tribunal’s opinion, should the Applicant be removed to Lebanon, there will be substantial difficulties in establishing himself and maintaining a basic life.

87.     The Applicant is 54 years of age and has a chronic history of abuse of illicit drugs, although he does not appear to be suffering from any other significant health issues. This submission is made on behalf of the Respondent. The Tribunal accepts that submission.

88.     The Applicant has not lived in Lebanon for 27 years and the Tribunal accepts that there will be substantial difficulties in his re-establishing himself in that country, not least because of cultural and language difficulties. The Applicant submits that he has limited Arabic language skills, although this was clearly not the case as disclosed during the course of the hearing.

89.     The Respondent submits as follows:

As to social, medical, and/or economic support in Lebanon (cl 9.2(1)(c)), country information indicates that the Applicant as a returnee would generally return to his home community or resettle in Beirut or another major city. Although Lebanese authorities do not provide support for resettlement, several non-governmental organisations do, including the Caritas Lebanon Migrants Centre, the Afro-Asian Migrant Centre, and the International Organisation for Migration (RTB 134 at [5.32]-[5.33]).

90.     It is clear enough from the Respondent’s statement that there would be real difficulties, in the Tribunal’s view, should the Applicant be returned to Lebanon, although those difficulties expressed by the Respondent are not insuperable.

91.     What makes the return of the Applicant particularly difficult in this case are other matters referred to above in the non-refoulement consideration which relates to and is relevant in this consideration, and the Tribunal takes those matters into account under this consideration.

92.     The return of the Applicant to Lebanon would, in the circumstances of this case, be particularly onerous also in an emotional sense.

93.     The Tribunal accepts that should the Applicant require any particular medical assistance he would be eligible for the same health services as other Lebanese nationals although it appears that the health system itself is, overall, quite poorly serviced and the Respondent, the Tribunal notes, accepts that the Applicant may not have access to the same degree of health services as are presently available in Australia.

94.     As to employment, although the Applicant has worked in the past as a driver and cleaner, it is most likely he would have difficulties obtaining employment in Lebanon.

95.     The Minister accepts that the Applicant would face some initial impediments if returned to Lebanon. Taking all of these matters into account, the Tribunal is of the view that the matters referred to above in this consideration means that this consideration should weigh in the Applicant’s favour.

Impact on victims

96.     Paragraph 9.3(1) of Direction No. 90 provides:

Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims…

97.     There is no evidence that this consideration engages in this application.

Links to the Australian community

98.     Reflecting the principles of Direction No. 90 at paragraph 5.2, decision-makers must have regard to Direction No. 90, paragraphs 9.4.1 to 9.4.2 provided below.

9.4.1.   The strength, nature and duration of ties to Australia

(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non­ citizen has to the Australian community. In doing so, decision-makers must have regard to:

a)    how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

b)    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

9.4.2    Impact on Australian business interests

(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

99.     The Applicant has lived in Australia for 27 years and on account of that matter alone, it may be supposed that he has forged some links to the Australian community as a whole.

100.    The Applicant has two children and two grandchildren who live in Australia as well as his ex-wife about whom there is little evidence to suggest that there is any real contact now between the parties. It may be supposed, however, that the ex-wife may have contact with the Applicant’s children and, in that way, there may be some, the Tribunal infers, appropriate recognition of contact in that way.

101.    The Tribunal accepts that there is a real relationship that exists between the Applicant’s children and grandchildren and in that way, these connections are relevant and important, in the Tribunal’s view, and are worthy of consideration and weight.

102.    As to the aspect of Australian business, there is no evidence that engages this limb of that consideration.

103.    This consideration, in the Tribunal’s opinion, carries some limited weight in the Applicant’s favour.

CONCLUSION

104.    Despite at first blush the very powerful factors relating to the Applicant’s past offending history and the view that the Tribunal has formed as to the likelihood of his re-offending in the way described by the Tribunal, nonetheless, it is the Tribunal’s ultimate conclusion that the likelihood of harm, should the Applicant be returned to Lebanon, weighs so powerfully in his favour that it outweighs all those other features which weigh against the Applicant.

105.    In the result, the Tribunal concludes that the mandatory cancellation of the Applicant’s visa should be revoked.

106.    The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 24 August 2021 not to revoke the mandatory cancellation of the Applicant’s Class BF Transitional (Permanent) visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s Class BF Transitional (Permanent) visa is revoked.

I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

.....................................[sgd]...................................

Associate

Dated: 11 November 2021

Date of hearing:	1 November 2021
Advocate for the Applicant:	Mr Mohamed Al-Fadhli, On Track Migration
Solicitor for the Respondent:	Mr Max Gao, Australian Government Solicitor